The Fair Work Commission has been busy of late...
The updates from the Fair Work Commission (FWC) have been coming thick and fast over the past few weeks, which has meant that my inbox has been filled with emails from various law firms advising on what the FWC has ruled and why.
It is easy to miss these changes or dismiss them as irrelevant for your organisation, which can can ultimately increase your organisations risk in relation to your staff. So, here is a summary of a number of key decisions from the past few weeks that are essential for small and large organisations alike to mitigate your people related workplace risks.
Unpaid Family & Domestic Violence Leave
The FWC has decided to include a model clause into all 122 Modern Awards. This will entitle all employees, casuals included, to 5 days of unpaid Family & Domestic Violence Leave. Employees will be able to take Family or Domestic Violence Leave if dealing with the impact of said violence and it is impractical to do so outside of their ordinary hours of work. This can include, but is not limited to, attending urgent court hearings, accessing police or family services, dealing with relocation arrangements.
The Leave will be available at the start of each 12 month period of employment (i.e. on an employees start date and each subsequent anniversary date), and will not accrue from year to year. One of the most significant decisions for people employed part time or casually is that they will be entitled to the full 5 days leave, meaning it will not be prorated based on the number of hours a week they work.
By definition, a model clause means that the clause will be identical in all 122 modern awards. The clause is being finalised as I type and another announcement will be made once it is completed. Additionally the FWC has committed to reviewing the issue in four years to look at the uptake of Family & Domestic Violence Leave and how it has worked over the four years since implementation (https://www.ablawyers.com.au/News/unpaid-domestic-violence-leave).
Family Friendly Workplace Arrangements
The FWC recently heard a claim by the ACTU to override an employers right to reject employee requests for flexible work arrangements on reasonable business grounds. The FWC rejected the claim finding that in the vast majority of cases employees who request flexibility receive it. This is an issue that the majority of employers and employees are getting right.
However, The FWC decided to include a model clause into modern awards to further facilitate flexible working arrangements in relation to parental and caring responsibilities of employees. The model clause intends to moderately expand the scope and process of requests for flexible working arrangements in the Fair Work Act. Ongoing and casual employees with at least six months’ service will become eligible to request a change in working arrangements relating to parental or caring responsibilities. What does this mean for Employers? An employer will be required to meet with an employee and attempt to reach genuine agreement that will reasonably accommodate the employee’s circumstances before refusing a request. Further, if an employer refuses a request, the employer’s written request will be required to include a more comprehensive explanation of the reasons for the refusal. The written response will also be required to include the details of any changes in working arrangements already agreed to as well as details of any changes to working arrangements that could be offered to the employee.
The Commission has invited parties to provide submissions regarding the terms of the model clause, whether such a model clause helps achieve the modern awards objective, and whether such a model clause would be in contravention of the Fair Work Act.
A New Compliance Framework re Employers Obligations to their Employees
If you can remember back to mid 2016 when we all first heard about 7-11's exploitation of their workers by underpaying them (https://www.smh.com.au/interactive/2015/7-eleven-revealed/) you'll recall that it sparked such an uproar that it resulted in the creation of the the Fair Work Amendment (Protecting Vulnerable Workers) Act 2017 (Cth) (Act). This new Act address concerns over the exploitation of vulnerable employees and how to provide significantly greater protection to such employees under the law.
The Act also introduced a number of significant amendments to the Fair Work Act 2009 (Cth) (FW Act) as shown below (care of http://www.fcbgroup.com.au/news/new-compliance-framework-gloves-off/).
But what does this mean for employers? In short, employers who underpay workers and fail to fully observe all employment obligations are now on notice to immediately change their practices, or risk the wrath of the FWC and all its consequences. While this amendment to the Fair Work Act came about predominately to address franchisor wraughting the immigration and employment systems for their own benefit, it will apply to all employers.
All employers should be reviewing how compliant their internal operations are, with two key aspects taking priority.
The first is the creation of the “serious contravention” category as defined in the above chart that attracts very high penalties for that category of contravention.
All businesses, managers and external advisors (such as, but not limited to, bookkeepers and advisors) responsible for people management activities are now on notice and should ensure compliant activities across all people management obligations. That means you need to know what you're paying, when & how and keep the all appropriate records. It's your obligation as an employer and/or as a manger. You can't fob the responsibility off onto anyone else.
The second is the onus of proof in regards to employment records or a lack thereof.
Any organisation that is not 100% aware of their record keeping obligations or is not confident that their practices are completely compliant needs to light a fire under its own arse and get compliant ASAP. It is the organisations responsibility to get all the applicable information off the employee. Not the employees. It is the employers obligation to maintain accurate and up to date employment records, produce a record or provide payslips. If you can't do this, you're organisation is in serious trouble.
If any of the above decisions have given you cause for concern about your organisation, The Fiddes Group is available to help.
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